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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 under. stood to be a transfer of the absolute property in the soil. So the
plaintiff had judgment. Public having Where the owners of the soil suffered the public to have the the use for eight free passage of a street in London, though not a thoroughfare, years, though
for eight years without any impediment (such as a bar set across not a thorough- the street, and shut at pleasure, which would shew the limited fare.
right of the public), it was held a sufficient time for presuming a Dedication by dedication of the way to the public. Though, if the land had
been under lease during that time, or even for a much longer be presumed.
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. And under cir. Yet it has been held, that where a way has been used by the cumstances, the public for a great number of years over a close, in the hands of a privity of the
succession of tenants, the privity of the landlord, and a dedication landlord may be presumed.
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. Notice to the And in this case, it was also held, that where a way has been so steward. used, notice of the fact to the steward is notice to the landlord. S.C. No obstruction In R. v. Lloyd, i Campb. 260., which was an indictment for oboffered to the structing a highway, it was said by Lord Ellenborough C. J., that public. 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, por 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 convenience, when the public have been long allowed to use it without
interruption. Old gate re
In Lethbridge v. Winter, Somerset Spring Assizes, 1808, 1 Camph, stored. 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 re, placed. 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. S. P. 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.
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 The facts must sufficient to shew that the owner meant to give the public a right shew that the of way over his soil, before a dedication by him will be presumed. owner meant
to dedicate it to Thus in Woodyer and another v. Hadden, 5 Taunt. 125., when the
the public. 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.
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. under a public there erected. The defendant justified the trespass under a pub- the locus in quo, lic right of way.
At the trial at the Westminster sittings, after which was not last Mich. term, before Abbott C. J., it appeared that the locus a thoroughfare, in quo, which was called Little Abingdon Street, Westminster, was had been under not a thoroughfare, but that as far back as living memory could lease from 1719 go, it had been used by all persons desirous of going there, and to 1818, but as that in 11 G. 3. it had been enumerated amongst other streets in living memory the act of parliament then passed for paving, cleaning, and light- could go, it had ing the squares, streets, &c. of Westminster. That the commis- been used by sioners had accordingly paved and lighted it, and that watchmen the public, and had been stationed there, &c. On the part of the plaintiff, it ap- lighted, paved, peared, that in the year 1719, a lease for 99 years of the plaintiff's under an act of premises, including the yard in dispute, had been granted by the parliament, in then owner of the fee; which having expired in 1818, the plain- which it was tiff
, in 1820, having for 24 years previously lived in the neigh- enumerated as bourhood, erected the fence in question. The Lord Chief Jus- one of the
streets in Westtice left it to the jury to say, whether they thought there had been minster. After any dedication to the public previously to 1719, telling them, 1818, the plainthat in that case, they ought to find for the defendant; but if not, tiff, who previthen he told them, that there could be no dedication to the pub- ously lived for lic, except by the owner of the fee; and that the permission by 24 years in its the tenants for 99 years would not bind the landlord ; and that inclosed it : the circumstance of the lease for 99 years, which had been proved, Held, that unexplained, in a great degree, the use by the public, as not being der these cirreferable to a dedication by the landlord. Under this direction, cumstances, the the jury found a verdict for the plaintiff. – On motion for a new
jury were well trial
, Abbott C. J. said, I have great difficulty in conceiving that justified in. Girndthere can be a public highway which is not a thoroughfare, be- was no public cause 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 there could be exist, although it was not a thoroughfare. Nothing done by the
the public by lessee without the consent of the owner of the fee would give the tenants for the right of way to the public. Here, as the land was demised 99 years, nor by by the lease of 1719, which expired in 1818, it seems to me, that any one except
the owner of the proper question to consider was, whether there had been a
dedication to the public before 1719, or subsequently to that period, with the consent of the owner of the fee. I am still of opinion that the case was presented properly to the consideration of the jury, and I think they have found a right verdict. — Bayley J. It is not necessary to decide upon the present occasion,
whether there can be a highway which is not a thoroughfare. Quære, whether For the point in this case is, whether, supposing that to be so, there can be a
there has been a dedication of this way to the public? Now in public highway order to give the public that right, it must be done with the conthoroughfare? sent of the owner of the fee; for where it is given by an indi
vidual having a limited right, it can only continue for a limited period. Here, upon the evidence, it appears that the permission was given, if at all, by the lessee for 99 years. I think, therefore, that the case was properly left to the jury, and that they have found a proper verdict. — Holroyd J. The opinion of Lord Kenyon in the Rugby Charity v. Merryweather, 11 East, 375. (n.) (ante, p. 579.) is somewhat shaken by the observations of Ld. C. J. Mansfield in Woodyer v. Hadden, 5 Taunt. 142. (ante, p. 580.) But it is not necessary to determine that question here, for this case has been determined upon principles which assume the case of the Rugby Charity v. Merryweather to be good law. – Best J. I am quite satisfied with the verdict which the jury have found in this case, and with the manner in which the question was left to them. No man has a greater respect for the learned judge who decided the case of the Rugby Charity v. Merryweather than I have, but I think that that decision was a departure from principles usually received in the law. If a road be for the accommodation of particular persons only, it is not a public road; and, therefore, I can see no reason why the inhabitants in a street which is not a thoroughfare should not put up a fence at the end of it and exelude the public. It is not, however, necessary to decide that question in this case, because, independently of it, the plaintiff was
entitled to the verdict. R. R. Unfinished In an action on the case for personal injury sustained by the street, dedica plaintiff, through defendant's negligence, from an unfinished house, tion presumed. the question was whether the street in which it happened had be
come a highway by dedication to the public. It was a new street, and was neither paved nor lighted, and it led from an old street to a road over fields ; but the public had used it for four or five years. Best C. J. told the jury, that if they thought the public had used it as a highway with the assent of the owners of the soil, they might presume a dedication; and the verdict having done so, the court of C. P. refused to disturb it. Jarvis v. Dean, 3 B.
447. Way over In a case where there had been a right of footway crown land
which belonged to the crown, and by an inclosure act which used for near 20 years : Held passed nearly twenty years before, all roads were disconno presumption tinued, unless where the commissioners awarded otherwise, and
there was no such provision by the commissioners as to the footpath in question, but the public had still continued to use it; the court recognised the authority of Wood v. Veal (see supra), which decided that the consent of the lessee alone was not sufficient to bind the owner, and that no legal dedication to the public was in this case to be presumed. Harper v. Charlesworth, 4 B. & C.
Rer v. The Inhab. of the Parish of St. Benedict, in the Town Rex v. Inh. of and County of Cambridge, E. 2 G.4. 4 B. & A. 447. Presentment St. Benedict,
Cambridge. in the usual form, by a magistrate against the defendants, for not
Where a road repairing a highway. Plea, not guilty. The case was tried at the
was set out by Cambridge Lent Assizes, 1820, before Graham B., when a verdict the commiswas found for the crown, subject to the opinion of the court of sioners under a K. B. on the following case :- - The road, which was proved to be local act, and
certain out of repair, was situate in the defendants' parish, and was
only were by originally made under the provisions of a local act passed in the the act to use it, 41 G.3. By a clause in that act the commissioners were directed but in fact it to set out two specific private roads, therein particularly described, had been used which, when set out, were to be used by such persons only as were by the public
for many years. entitled to use an old occupation-road, running in the same direc
it was held that tion with the latter of the iwo roads. The commissioners acting this was not sufin execution of this power, by their award, dated June 27. 1803, fcient evidence set out the road presented as one of these two roads. From the of a dedication date of the award, however, until the finding of the presentment, to the public;
and that if it the road had been used by the public without interruption as
was, there being a carriage-way. The question was, whether under these circum.
no evidence that stances this was a public road which the parish was bound to the parish had repair ? After argument, in which the cases of The Trustees of acquiesced in the Rugby Charity v. Merryweather (11 East, 375.), The King v. that dedication,
it was not a The West Riding of Yorkshire (2 East, 342.), and Rex v. Lloyd
public road (1 Camp. 260.), were cited, Abbott C. J. said, --1 am of opinion which the parish that this was not a public road, and that the parish are not bound were bound to to repair it. It was in this case, as appears from the clause in the repair. local act, compulsory on the owner of the soil to permit a qualified passage, viz. to all persons entitled to use the old occupationroad. That circumstance distinguishes this from the cases cited. If this be a public road, it would follow that wherever, under an inclosure act, an occupation-road was set out, and it happened to be convenient for passage, it would become, almost immediately, a public road, and the burthen of repairing it would be thrown on the parish.— Bayley J. I do not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, that the parish is therefore bound to repair. I think there ought to be, in addition to that, evidence (a) of an acquiescence by the parish in that dedication. In the case of bridges, there always is what is to be considered as an acqui. escence by the county. The county is not liable except for bridges made in highways; the making of the bridge, and thereby obstructing the road while the bridge is making, may be treated as a nuisance, and the county may, if it think fit, stop its progress by indictment, and the forbearing to prosecute in that way is an acquiescence by the county in the building of the bridge. But in the case of a parishı, they have no power to prevent the opening of a road, or to obstruct the public use of it." It would be most unjust if, by the public use of what was at first a private road, the burthen of repairing it could be removed from the persons to whom the use of it was at first confined, and cast upon the parish. Admitting, therefore, that in this case there was a dedication to the public (which, I think, does not sufficiently appear), and the road was found to be a public benefit (which I am not sure is the
(a) But see the next case.
Rex v. Inh. of case,) I think that in consequence of the want of some act of acSt. Benedict, quiescence or adoption by the parish, they are not liable to the Cambridge.
repair of this road. Holroyd and Best Js. concurred. Judgment
for the defendants. Where the On the indictment of a parish for the non-repair of a road, it public have
appeared on special case that certain commissioners under an made use of
act for the drainage of certain tracts of land, had formed a bank a highway, no particular adop- forty feet broad, by the side of a drain, and with earth which tion by the had been taken out of the drain; and the bank had been used for parish is re- twenty-five years as a convenient and useful road for the public, quired, during which time the parish had repaired it; and the land on
which the bank was placed had been purchased by the com. missioners. The court held, that where a highway had been made use of by the public, the parish must be charged with the repairs of it, and that no particular adoption of it by the parish was
requisite; controverting in this respect what was laid down in Repairs done
R. v. Benedict ; but that even if any adoption were necessary, the by the parish repair of it by the parish was a sufficient adoption: they further are a sufficient held, that there was no reason why such commissioners might not adoption.
make a legal dedication of a highway, provided it were not incon. Commissioners sistent with the duties of their trust; but the court were divided may dedicate a in opinion whether in the present instance the commissioners road to the could, consistently with the object of the act, make the dedication public, if con
in question. R. v. Inhabitants of Leake, 5 B. & Ad. 469. sistent with their
The Marquis of Stafford v. Coyney, 7 B. & C. 257. The plaintiff Public
had suffered the public to use for several years a road through his permitted to estate for all purposes, except for carrying coals; and it was held use a road for that this was either a limited dedication of the road to the public, a certain or no dedication at all, but only a licence revocable; and that a purpose only.
person carrying coals along the road after notice not to do so was
It seems to be agreed that of common right (that is, by the neral to repair. common law) the general charge of repairing all highways lies on the occupiers of the lands in the parish wherein
they are. But particular persons may also be burthened with the general charge of repairing a highway in two cases, namely, in respect of an inclosure, or by prescription.
And to such an extent is this obligation, that if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted, by the provisions of a road-act, from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the
parish. R. v. Inh. of Sheffield, 2.T.R. 106. 1 Russ. 320. Where indi. And upon the same principle it was holden, that if particular viduals liable to persons were made chargeable to the repairs of such highways by repair become
a statute lately made, and became insolvent, the justices of peace insolvent.
might put that charge upon the rest of the inhabitants. Anon.
1 Ld. Raym. 725. i Russ. 320. Where the
And where a statute enacted that the paving of a particular road is placed
street should be under the care of commissioners, and provided a by stat, under
Parish in ge