For there were highways before there were market towns. And if it were essential to the constituting of a highway that it should expressly lead from market town to market town, then it would follow that the lord of a market, by forfeiting or surrendering his charter, might cause that to cease to be a highway which was a highway before; or the king, by granting a market in any place where there was no market before, might thereby consequently change the way to it from a private way into a highway. And therefore, the distinction which is taken in some books concerning this matter, seems to be very reasonable; that every way from town to town may be called a highway, because it is common to all the king's subjects; and consequently, that a nuisance therein is a common nuisance, and punishable by indictment; but that a way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village only, may be called a private way, but not a highway, because it belongeth not to all the king's subjects, but only to some particular persons, each of whom, as it seems, may have an action on the case for a nuisance therein. 1 Haw. c. 76. § 1. 1 Russ. 448. So, 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 hinderance, I may fill them 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 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. 52. Highway need not lead to a market town. Not a highway, if used by particular inhabitants only. Nuisance in and repairs of private ways. out of repair, Taylor v. Whitehead, Doug. 745. This was an action of tres- Where a prepass for breaking and entering the plaintiff's close. The defend- scription way is ant (inter alia) pleaded a right of way by prescription, through the passengers a lane of the plaintiff's contiguous to the place in question, to have no right to Otley-bridge on the river Wharfe, in Yorkshire, and that the go upon the adtenants and occupiers of those lands were from time whereof, &c. jacent ground. by reason of their tenure, bound to repair the land, and the banks thereof next to the river; that at several times the lane was out of repair and overflowed with water, so that the defendant could not use the way without imminent danger of the loss of his life and goods; and that he necessarily went over the lands adjoining, as near to the said way as he possibly could, as it was lawful for him to do, &c. This cause was tried before Lord Loughborough, at York, in 1780, and afterwards argued in the court of K. B. - By Lord Mansfield C. J. 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 particular line; but I do not give you a right to go either on the right or left. I entirely agree with my brother Walker, 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 Otherwise as to neglect of the defendant. Highways are governed by a different highways. 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. See also Bullard v. Harrison, 4 M. & S. 387. How far outlets are part of the highway. Waste lands adjoining to highways belong prima facie to owner of adjoining land. Acc. where the land is copyhold. Space by the side of a road And this was clear law established by a number of cases, particularly that of Absor v. French, B. R. M. 30 Car. 2. 2 Show. 21. S. C. Lev. 234. and Hend'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 impair the banks of a navigable river (which is, indeed, considered as a highway), it is justifiable to go upon the nearest part of the field next adjoining. 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 only the beaten track; from whence it follows, that if such outlets be sown with corn, and the beaten track be foundrous, the king's subjects may justify going upon the corn. 1 Haw. c. 76. § 2. Waste lands adjoining to public highways, are presumed, in the first instance, to belong to the owner of the adjoining land, and not to the lord of the manor, but that presumption prevails only so long as proof to the contrary is wanting. Steel v. Prickett, 2 Stark. N. P. 463. Where strips of land lie between a highway and an adjoining enclosure, the prima facie presumption is, that such strips of land, as well as the soil of the highway ad medium filum viæ, are the property of the owner of the enclosure; but the presumption is to be confined to that extent, for if the narrow strip be contiguous to, or communicate with, open commons or larger portions of land, the presumption is either done away or considerably narrowed, for the evidence of ownership which applies to the larger portions applies also to the narrow strip which communicates with them. Grose v. West and others, 7 Taunt. 39. The defendant's father having built a cottage on a slip of land lying between an inclosed copyhold tenement and a turnpike road, in ejectment the question was, whether such slip belonged to the adjoining copyholder or to the lord of the manor; the court decided that the same principle ought to prevail in the case of copyhold as of freehold; and per Holroyd J., the rule that waste land near a highway is to be presumed prima facie to belong to the owner of the inclosed land next adjoining, is not confined to a case where the owner of that land is a freeholder, but extends equally to cases where the owner is a leaseholder or copyholder: In either case evidence may be given to rebut the prima facie presumption. Doe d. Pring and another v. Pearsey, 7 B. & C. 304. On indictment for an encroachment on a highway, it appeared that certain inclosure commissioners were authorised to set out public and private roads (the former to be sixty feet wide); and they set out the road in question, styling it a private road, but leaving sixty feet for the width, the centre of which space had been commonly used by the public as a carriage road, and had been repaired by the township for eighteen years. The question left to the jury was, whether the road, though originally meant to be a private one, had not been subsequently dedicated to the public. After verdict of guilty, on motion for a new trial, the rule was discharged; the court saying, that it was a case for the jury, and that they had found a right verdict: and per Lord Tenterden, "I am strongly of opinion that when I see a space of fifty or sixty feet, through which a road passes between inclosures, set out by an act of parliament, that, unless the contrary be shewn, the public is entitled to the whole of that space, although, perhaps from economy, the whole may not have been kept in repair. If it were once held, that only the middle part which carriages ordinarily run upon was the road, you might by degrees inclose up to it, so that there would not be room left for two carriages to pass. The space at the sides is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as the road, it could not be kept sound." R. v. Wright, 3 B. & Ad. 681. set out under an inclosure act, held to be part of the road. In an action brought by the clerk of certain road commissioners The footpath for the recovery of a rate for lighting, cleansing, &c. footways, the by the side of a question was, whether the local act which exempted the turnpike- turnpike-road road from the jurisdiction of the commissioners, exempted also the forms part of it. footpath which was formed by the side of the turnpike-road: on special case, stating the provisions of the several acts, the court gave judgment for the defendant, on the ground that the footpath in question was part of the turnpike-road; and per Taunton J., a footpath by the roadside, included within the hedge or fence of the road, is as much part of a public highway as that which is travelled over by carriages. The 111th section of the general turnpike act (3 G. 4. c. 126.) shews that, of necessity, the footpath must form part of a turnpike-road. Loveridge v. Hodsoll, 2 B. & Ad. 602. In books of the best authority a river common to all men is called a highway. 1 Haw. c. 76. § 1. The freehold of the highway is in him that hath the freehold of the soil; but the free passage is for all the king's liege people. 2 Inst. 705. And see Sir John Lade v. Shepherd, infra. The king has nothing but the passage for himself and his people; for the freehold and all profits belong to the owner of the soil, and all the trees upon it and mines under it, which may be extremely valuable. 1 Burr. 143. How far a river way. freehold of a Sir John Lade v. Shepherd, 2 Str. 1004. Upon trial of an action What is a deof trespass, a case was made that the place where the supposed dication to the trespass was committed was formerly the property of the plaintiff, public; who some years since built a street upon it, which has ever since been used as a highway; that the defendant had lands contiguous, parted only by a ditch, and that he laid a bridge over the ditch, the it is not a transend whereof rested on the highway. It was insisted for the de- fer of the soil. fendant that by the plaintiff's making it a street, it was a dedication of it to the public; and therefore, however he might be liable to an indictment for a nuisance, yet the plaintiff could not sue him as for a trespass on his private property.. But by the court: It is cer. tainly a dedication to the public, so far as the public has occasion for it, which is only for a right of passage; but it never was understood to be a transfer of the absolute property in the soil. So the plaintiff had judgment. Where the owners of the soil suffered the public to have the free passage of a street in London, though not a thoroughfare, for eight years without any impediment (such as a bar set across the street, and shut at pleasure, which would shew the limited right of the public), it was held a sufficient time for presuming a dedication of the way to the public. Though, if the land had been under lease during that time, or even for a much longer period, the acquiescence of the tenant would not, it seems, have bound the landlord, without evidence of his knowledge. Trustees of the Rugby Charity v. Merryweather, 11 East, 375. in the note. Et vide per Mansfield C. J., 5 Taunt. 142. But see Wood v. Veal, post, p. 581. Yet it has been held, that where a way has been used by the public for a great number of years over a close, in the hands of a succession of tenants, the privity of the landlord, and a dedication by him to the public, may be presumed, although he was never in the actual possession of the close himself, and he is not proved to have been near the spot. R. v. Barr, 4 Camp. 16. And in this case, it was also held, that where a way has been so used, notice of the fact to the steward is notice to the landlord. S. C. In R. v. Lloyd, 1 Campb. 260., which was an indictment for obstructing a highway, it was said by Lord Ellenborough C. J., that although a place be not a thoroughfare, yet if the owner of the soil throw open a passage, and neither marks by any visible distinction that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public, and that although the passage were originally intended for private conve nience, when the public have been long allowed to use it without interruption. In Lethbridge v. Winter, Somerset Spring Assizes, 1808, 1 Campb. 263. (n.), trespass was brought for entering plaintiff's close and pulling down a gate. Plea, that it was a public footway, and the gate wrongfully erected across the same. - Evidence, that the gate had recently been put up in a place where a similar gate had formerly stood, but where for the last twelve years there had been none. It was contended for the defendant, that from suffering a gate to be down so long, and permitting the public to use the way without obstruction for so many years, the plaintiff and those under whom he claimed must be considered as having completely dedicated the way to the public, and that the gate could not be replaced. Under the direction of the judge, a verdict was found for the plaintiff, and the court of K. B. refused a rule nisi to set it aside. And in Roberts v. Karr, Kingston Lent Assizes, 1808, 1 Campb. 262. (n.), Heath J. also decided the same point, viz. that the originally establishing a bar or obstruction rebuts the presumption of a dedication to the public, though it may have been down for some time. C He also said that there could not be a partial dedication to the public. 1 Russ. 310. But see Ld. Stafford v. Coyney, post, p. 584. It seems, also, that in every case the facts must be considered as sufficient to shew that the owner meant to give the public a right of way over his soil, before a dedication by him will be presumed. Thus in Woodyer and another v. Hadden, 5 Taunt. 125., when the plaintiff erected a street, leading out of a highway across his own close, and terminating at the head 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. The facts must shew that the owner meant to dedicate it to the public. under a public far back as and watched streets in Westminster. After Wood v. Veal, H. 2 G. 4. 5 B. & A. 454. Trespass for breaking Intrespass and and entering a certain yard and close of the plaintiff, in the pa- justification rish of St. John, Westminster, and pulling down his fence, &c. there erected. The defendant justified the trespass under a public right of way. At the trial at the Westminster sittings, after last Mich. term, before Abbott C. J., it appeared that the locus in quo, which was called Little Abingdon Street, Westminster, was not a thoroughfare, but that as far back as living memory could go, it had been used by all persons desirous of going there, and that in 11 G. 3. it had been enumerated amongst other streets in the act of parliament then passed for paving, cleaning, and lighting the squares, streets, &c. of Westminster. That the commissioners had accordingly paved and lighted it, and that watchmen had been stationed there, &c. On the part of the plaintiff, it appeared, that in the year 1719, a lease for 99 years of the plaintiff's premises, including the yard in dispute, had been granted by the then owner of the fee; which having expired in 1818, the plaintiff, in 1820, having for 24 years previously lived in the neighbourhood, erected the fence in question. The Lord Chief Justice left it to the jury to say, whether they thought there had been any dedication to the public previously to 1719, telling them, that in that case, they ought to find for the defendant; but if not, then he told them, that there could be no dedication to the public, except by the owner of the fee; and that the permission by the tenants for 99 years would not bind the landlord; and that the circumstance of the lease for 99 years, which had been proved, explained, in a great degree, the use by the public, as not being referable to a dedication by the landlord. Under this direction, the jury found a verdict for the plaintiff. - On motion for a new trial, Abbott C. J. said, I have great difficulty in conceiving that there can be a public highway which is not a thoroughfare, because the public at large cannot well be in the use of it. In this right of way, case, however, I left it to the jury to consider, whether there had inasmuch as been a dedication to the public, telling them that a highway might exist, although it was not a thoroughfare. Nothing done by the lessee without the consent of the owner of the fee would give the right of way to the public. Here, as the land was demised by the lease of 1719, which expired in 1818, it seems to me, that the proper question to consider was, whether there had been a 1818, the plaintiff, who previously lived for 24 years in its neighbourhood, inclosed it: Held, that under these circumstances, the jury were well justified in finding that there was no public there could be the public by the tenants for 99 years, nor by any one except no dedication to the owner of the fee. |