in any place where there was no market before, might thereby consequent- HOW CREATED. ly 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, s. 1; Wellb. 7; and Jarvis v. Dean, 3 Bingh. 447; 11 Moo. 354, S. C. It seems the public may have a right to the use of a road, or, in other words, that there may be a highway without a thoroughfare. See Rugby Charity v. Merryweather, 11 East, 375, n.; Rex v. Lloyd, 1 Camp. 260. But the correctness of this position is ably denied by Mr. Wellbeloved in his work on Highways, 7 to 19, citing Woodyer v. Hadden, 5 Taunt. 138; and the opinions of Abbott, C. J., Holroyd, and Best, Js., in Wood v. Veal, 5 B. & A. 454; 1 D. & R. 20, S. C. As to the right of going on adjoining lands, &c., see post, 7. Whether there must be a tho roughfare. II. How a Highway may be created. A HIGHWAY may be created by prescription, by dedication, by act of How created. Parliament, or by necessity. (1) By Prescription]-The most common mode in which a highway is 1. By prescription. supported as being such, is by prescription. If all persons without distinction have indiscriminately, for a considerable space of time, without interruption, used and enjoyed a way, such way will be presumed to be a highway. A much shorter period of possession will suffice to establish a right in the public, than a right in a private person to a way. The more open and notorious the user is, so much the more is there ground for presuming the way a highway. If the way was used for the repairs of other highways, or the like, that would especially, if known to the owner of the soil, afford strong evidence of the public right. See Rex v. Wandsworth, 1 B. & A. 63; 3 Stark. Evid. 63. Repairs of the way by the parish would also afford similar evidence. Id.; and see 7 B. & C. 257, infra. The termini of the way may assist in establishing the public right, but are not conclusive as to it. See 2 East, 375; 1 Camp. 362. A verdict in an issue taken as to the right of the public to a way, and finding such right to exist, is afterwards evidence of the right. 2 East, 355. Evidence of reputation is admissible. 1 Ventr. 189; 3 Camp. 544. Ante, Evidence, Vol. II. (2) By Dedication]-A way may become a public highway by a dedica- 2. By dedication. tion of it to the public by the owner in fee. Such dedication is either express or implied. With regard to an express dedication, it is said by Chambre, J., in Wood- Express. yer v. Hadden, 5 Taunt. 125: "We know, that, in dedicating churches, there is, after the work is completed, a formal act of dedication; and, by analogy, not only until the work is completed, but until the owner has shewn some intention of dedicating the soil to the public, his right of excluding them continues." A formal declaration of such intention of dedicating a way to the public is sufficient. But in R. v. Ward, Cro. Car. 266, it is said, that the mere laying out of a way, though more commodious to the public, does not give the public a right of way there. It is not necessary that the dedication should be by deed. In Marquis VOL. III. C BY DEDICATION. of Stafford v. Coyney, 7 B. & C. 257, the Court did not express any doubt as to the legality of the dedication, which was by parol dedication. Nor can any thing but a parol dedication be presumed, where the public have used the way for not more than six or seven years, and, a fortiori, where they have used it for four or five years only. It is also difficult to see to whom a grant can be made; the public cannot be the grantees, nor can a deed-poll be enrolled in any official custody for the protection of the public. Implied. How presumption of dedication rebutted. Partial dedication. This forms a distinction between public and private ways. A private way is an incorporeal hereditament, and is founded on a grant, or on a prescription, from which a grant may be presumed. Hewlins v. Shipham, 5 B. & C. 221; and such grant cannot be presumed, unless a user of the way has continued without interruption for twenty years. See Moore v. Rawson, 3 B. & C. 332; 5 D. & R. 234, S. C. See 3 Bingh. 115. With respect to what is an implied dedication, Lord Ellenborough, in R. v. Lloyd, 1 Camp. 260, says, generally, that if the owner of the soil throws open a way, and marks by no visible distinction his intention to exclude the public, a dedication will be presumed. So, in Sir John Lade v. Shepherd, 2 Stra. 1004; and Duncombe v. Smith, Wellb. 61. In the case of Wood v. Veal, 5 B. & A. 454; 1 D. & R. 20, S. C., the consent of the owner in fee was not inferred, though he had lived near the spot for twenty-four years. But in R. v. Barr, 4 Camp. 16, the acquiescence of the owner and landlord was inferred, where the way had been used a great many years, during successive tenancies, and the tenants had complained of such user to his steward. 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. And 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, note. Et vide Mansfield, C. J.'s, judgment, 5 Taunt. 142. In a recent case, an inference of dedication was allowed, where the way had been used but for four or five years, and was in an unfinished state, being only partly paved. Jarvis v. Dean, 3 Bingh. 447; 11 B. Moore, 354, S. C. 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; Roberts v. Karr, 1 Camp. 262; or, though the bar be across only part of the way. Id. 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. In Woodyer and another v. Haddon, 5 Taunt. 125, when the plaintiff erected a street, leading out of a highway across his own close, and terminating at the edge 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. And see 7 B. & C. 257. The question of partial dedication is still undecided. In Marquis of Stafford v. Coyney, 7 B. & C. 257, a majority of the judges thought it good. In R. v. Northampton, 2 M. & S. 262, Lord Ellenborough said, "Though the dedication to the public must be absolute, it may be limited as to time." Where a bridge was used only when the river was dangerous, it was held a public bridge, R. v. Devon. R. & M. 144. In Lethbridge v. Winter, 1 Camp. 263, it was considered there could not be a partial dedication, although there might be a grant of a footway only. See Wellb. 50. The dedication must be made by the owner in fee. Therefore, where the land over which the way was claimed had been leased for ninety-nine years, though it had been paved and lighted by the public, and in a public statute called one of the streets of Westminster, such user of the way, though extensive, being by the consent of the lessee only, was held not binding on the owner of the inheritance; and that when the lease expired, he might prevent the public from using it. Wood v. Veal, 5 B. & A. 454; 1 D. & R. 20, S. C. BY DEDICATION. Dedication must be by owner in fee. The consent of the Crown will not be inferred from long use of a way by Consent of Crown. the public over crown lands in the occupation of a tenant. Harper v. Charlesworth, 4 B. & A.574. Nor will such an inference be drawn where certain persons are by statute entitled to use it, though, in fact, all the public had used it for seventeen years. R. v. St. Benedict, 4 B. & A. 447. In fact, to bind the Crown, an express consent is necessary. In order to render a way a highway from dedication, it is essential that Consent of public. the public should assent to it, by actual user. If there be not such consent by user, the parish are not bound to repair it. See R. v. St. Benedict, 4 B. & A. 447; Wellb. 63; R. v. Paddington Vestry, 9 B. & C. 456. liament. (3) By Act of Parliament]-A highway may be created by an act of 3. By Act of ParParliament, containing a specific enactment as to it. See Sutcliffe v. Greenwood, 8 Price, 535. The provisions contained in the act must be strictly complied with, before the way can be established, or the liability to repair it enforced. Wellb. 67. Therefore, where notices were required to be given, but appeared not to have been given, the proceeding under the act was held invalid. R. v. Haslingfield, 2 M. & S. 558, post, 13. Where a way has been recognized as public in an act of Parliament for making streets, squares, &c., it is not necessary that it should be adopted by the parish to make it a public way. R. v. Lyon, 5 D. & R. 497. All persons are presumed to have consented to an act of Parliament. (4) By Necessity]-If a highway be impassable from being out of repair, 4. By necessity. or otherwise, the public have a right to pass in another line, and, for this purpose, go on the adjoining ground; and it makes no difference whether it be sown with grain or not. 1 Roll. Ab. 390, a. pl. 1. & b. pl. 1. And it is clear law, established by a number of cases, particularly that of Absor v. French, B. R. M. 30 Car. 2; 2 Show. 21; 2 Lev. 234, S. C.; and Henn'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 indeed is 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 the beaten track only; from whence it follows, that if such outlets be sown with corn, and the beaten track be founderous, the king's subjects may justify going upon the corn. 1 Haw. c. 76, s. 2. See Sir E. Ďuncombe's Case, Cro. Car. 366. And it has been held, that where a man incloseth and doth not make a good way, (as in such case he is bound to do, by reason of the inclosure), it is lawful for passengers to make gaps in his hedges to avoid the ill way, so that they do not go further into his inclosed grounds than is needful for avoiding the bad way. Henn's Case, Sir W. Jones, 296; Absor v. French, 2 Show. 21; 2 Lev. 234; 1 Lord Raym. 725, S. C. But it is questionable whether such gaps could be made, where it is not the owner's fault that the way is impassable, and where there is no immemorial custom to travel over the place stopped up by the fences. This privilege of going over the adjoining lands is confined to highways; OWNERSHIP. To whom the freehold of a highway belongeth. Waste lands adjoining to highways. and the grantee of a private way has no such privilege, generally speaking. Taylor v. Whitehead, Dougl. 745 (a); Bullard v. Harrison, 4 M. & S. 387; 1 Saund. 323, n. 6. 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 hindrance, 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. III. Of the Ownership of the Soil, &c. in Highways. 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, 2 Stra. 1044. 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. Nor does the soil vest in turnpike trustees, unless there is a special clause in the statute for that purpose. Davison v. Gill, 1 East, 69. See also R. v. Mersey Navigation, 9 B. & C. 95; R. v. Thomas, 9 B. & C. 114. The owner may maintain an ejectment for the soil; Goodtitle v. Alker, 1 Burr. 133; Doe v. Wilkinson, 3 B. & C. 413; and see Scales v. Pickering, 4 Bing. 448; or trespass for any other wrongful act done to it or the profits. Dovaston v. Payne, 2 Hen. Bla. 527; 11 East, 51. 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 inclosure, 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 inclosure; 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 nar (a) This was an action of trespass, for breaking and entering the plaintiff's close. The defendant pleaded (inter alia), a right of way by prescription, through a lane of the plaintiff's, contiguous to the locus in quo, to Otley-bridge on the river Wharfe, in Yorkshire, and that the tenants and occupiers of those lands were, from time whereof &c., by reason of their tenure, bound to repair the lane, 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.-Et per Ld. 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 neglect of the defendant. Highways are governed by a different 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." Grose v. rowed; for the evidence of ownership, which applies to the larger portions, And a recent right, founded on an inclosure under an act of Parliament, does not make any distinction with regard to this general law. Cooke v. Green, 11 Price, 736. IV. Repairs by the Parish. (1) At Common Law]—IT seems to be agreed, that of common right, (that is, by the 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 burdened with the general charge of repairing a highway, in two cases, namely, in respect of an inclosure, or by prescription. 1 Řoll. Ab. 390; 1 Ventr. 90, 183; 12 Mod. 409; and see the preamble of the 34 Geo. III. c. 64. 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. Sheffield, 2 T. R. 106; and see R. v. Oxfordshire, 4 B. & C. 194; 6 D. & R. 231, S. C. And upon the same principle it was holden, that if particular persons were made chargeable to the repairs of such highways by a statute lately made, and became insolvent, the justices of peace might put that charge upon the rest of the inhabitants. Anon. 1 Ld. Raym. 725 (a). And where a statute enacted that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose; and another statute, which was passed for paving the streets of the parish, contained a clause that it should not extend to the particular street: it was held, that the inhabitants of the parish were not exempted from their common law liability to keep that street in repair; that the duty of repairing might be imposed upon others, and the parish be still liable; and that the parish were under the obligation, in the first instance, of seeing that the street was properly paved, and might seek a remedy over, against the commissioners. R. v. St. George, Hanover Square, 3 Campb. 222; and R. v. Oxfordshire, 4 B. & C. 194; 6 D. & R. 231, S. C. And where a highway has been converted into a turnpike road, and placed under the management of trustees, with a power to collect tolls to be applied to the repairs; if the way be out of repair, the parish (or township, as the case may be) are the only persons who are liable to be indicted, and must seek their remedy over against the trustees. R. v. Netherthong, 2 B. & A. 179 (b). No agreement can exonerate a parish from the common law liability to repair; and a count in an indictment against the corporation of Liverpool, stating, that they were liable to repair a highway by virtue of a certain agreement with the owners of houses alongside of it, was held to be bad, on the ground that the inhabitants of the parish, who are prima facie bound to the repair of all highways within their boundaries, cannot be discharged from (a) In this case, it is said, two justices may order the parish to repair. It seems, however, an indictment would lie; nor does the power of justices to interfere very clearly appear, except, that they may direct surveyors what roads to repair. See post, 35. If the parish was in such case indicted, and they pleaded the liability of the individual, this case seems (b) As to the apportionment of the fines |