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V.

The defendants pleaded not guilty.

1862. On the trial, before Erle C. J., at the Surrey Spring The QUEEN Assizes, it appeared from the evidence on the part of TRAIN. the prosecution, that the defendant Train had, with the assistance of the defendant Hathaway as his servant, laid down on the highway described in the indictment a double line of tramways, on which omnibuses of a peculiar construction plied for hire. The other defendants were the vestrymen of the parish of Lambeth, through which the tramways ran; and these had been constructed with their sanction, and under a contract for that purpose between them and Train. It was further shewn that these tramways and the carriages which moved upon them were dangerous and inconvenient to many of the public, as the wheels of vehicles skidded when crossing the tramway, and horses which put their feet

upon it were startled. The defendants offered evidence to shew that, although the tramways were productive of inconvenience to individuals, they were for the convenience of the public, because a very large number of persons used the omnibuses as a means of transit, to the great saving of their time and money. Erle C. J. however ruled that that evidence was immaterial, and rejected it: and he directed the jury that, if the tramways were a source of danger and inconvenience to a portion of the public who had a right to use the highway, they would be a nuisance, without reference to their being for the general convenience. The jury found a verdict for the Crown against the defendants Train and Hathaway. With respect to the other defendants, several points of law having been raised, it was, by consent, arranged that no verdict should be taken, and, on the

1862.

suggestion of this Court, a nolle prosequi was ultimately entered.

The QUEEN

TRAIN.

Bovill, on the part of the defendants Train and Hathaway, moved for a new trial on the ground of misdirection, that the above evidence had been improperly rejected, and that the verdict was against the evidence. (He also moved to enter a verdict, but it appeared that no leave for that purpose had been reserved.) – This case raises the very important question as to the legality of laying down tramways in the streets of the metropolis. Such have been laid down in Birkenhead, and also in America, with great success, and are a great convenience to the public. It is true that in Rex v. Russell (a), where a private individual impeded the navigation of a public river by taking possession of a portion of its bed, Holroyd and Bayley JJ. held that the circumstance of his doing so being for the benefit of the public might be taken into consideration in determining whether the act was a nuisance. Lord Tenterden, however, dissented; and the decision of the majority of the Court in that case seems overruled by the subsequent case of Rex v. Ward (6), as well as inconsistent with Rez v. Lord Grosvenor (c), cited in Rex v. Ward, p. 403, and with Rex v. Morris, 1 B. & A. 441. 447. In Reg. v. Betts (d), also, Lord Campbell says, p. 1037, "According to the authority of Lord Hale, to that of Lord Tenterden in Rex v. Russell, and to the opinion of this Court in Rex v. Ward, it is for the jury to say whether an erection of this kind is a damage to the navigation or not. That the utility of such a work to the neighbourhood or to the (a) 6 B. & C. 566.

(6) 4 A. & E. 384. (c) 2 Stark. 511.

(d) 16 Q. B. 1022.

public interests, generally, may be taken into account as 1862. a compensation, is a point on which, with great deference, The QUEEN I cannot concur with the majority of the Judges who

Train. decided Rex v. Russell. The true question is, whether a damage accrues to the navigation in the particular locality; and that is a question for the jury." But the present case differs from all those, for what was here done was for the purpose of regulating the use of the highway and the passage upon it.

Parish officers are empowered, and it is every day's practice for them, to raise a portion of a highway for the convenience of foot passengers. They also lay down iron gutters in highways, and change the pavement to wood, granite, or even to iron ;-things which are quite as dangerous to persons on horseback as tramways. They are also justified in putting down tramways along part of a highway for the purpose of keeping the heavy traffic clear from the rest.

The case may be looked at in another point of view. The borough of Lambeth is included in The Metropolis Local Management Act, 18 & 19 Vict. c. 120., sect. 98. of which enacts : “ It shall be lawful for

every vestry and district board from time to time to cause all or any of the streets within their parish or district, or any part thereof respectively, to be paved or repaired when and as often and in such form and manner and with such materials as such vestry or board think fit, and to cause the ground or soil thereof to be raised or lowered, and the course of the channels running in, into, or through the same to be turned or altered, in such manner as they think proper, and to alter the position of any mains or pipes in or under such street, such alteration to be made subject to the approval of the engineer

1862.

The QUEEN

V. Train.

of the Company to which such mains or pipes belong." What was done here was a mode of paving this metropolitan highway, a matter which this section leaves entirely within the control of the vestry.

It was therefore a question for the jury whether what was done here was a public nuisance, or a reasonable and convenient arrangement of the highway for the convenience of the public generally using that highway, and for the accommodation of the traffic upon it. The question is limited to the tramways, for the indictment does not charge the carriages as being a nuisance.

CROMPTON J. We are strongly of opinion that this conviction was right, and that, at least so far as Mr. Bovill's clients are concerned, there is no reason to disturb it. Our judgment proceeds on these short grounds. It was clearly shewn by the evidence, and is established by the finding of the jury, that these tramways were a nuisance, dangerous and mischievous to passengers on the highway; and the defendants, by whom they were constructed, are therefore responsible for that nuisance, unless Mr. Bovill succeeds in establishing the proposition for which he contends. He tried to distinguish the present case from those which have settled the law that you cannot, for the benefit of one part of the public, interfere with the rights of passage of the rest over land or water. I understand him to admit that these tramways would be a nuisance to travellers passing across them, but he contended that, taking all the facts together, it was a question for the jury whether they were a nuisance, or whether what was done was not a reasonable and convenient arrangement for the use of the highway by the public generally. Supposing however, for the present, that his proposition

that an arrangement for the use of a highway in a par- 1862. ticular manner being for the advantage of the public The QUEEN generally would be an answer to an indictment for

TRAIN. that arrangement, this case does not come within that principle, seeing that this was not an arrangement for the ordinary use of the highway, and is very distinguishable from the cases he put. It may fairly be said, for instance, that the raising a portion of a highway for the use of passengers is allowable ; but that is for the use of the highway quà highway. And I do not say that there may not be cases where arrangements for the advantage of one class of persons may be allowable though mischievous to another class. But what has been done here is not making any arrangement for the use of the highway in the ordinary manner of using a highway. On the contrary, it is withdrawing so much of the highway from its ordinary use as such; for it is idle to say that you can use as an ordinary part of this highway the portion taken up by the tramways. A carriage meeting an omnibus running on one of them cannot give and take the road. The case is like that of Reg. v. The United Kingdom Electric Telegraph Company(Limited)(a), which we have just disposed of, and others of a similar

(a) This case of Reg. v. The United Kingdom Electric Telegraph Company (Limited) was tried by Martin B. at the Spring Assizes for Bucks. It was an indictment against the defendants for erecting their telegraphic poles along the sides of the highways extending through a long tract of country, in such a manner as to obstruct the highways. A verdict having been given for the Crown, O'Malley, in the present Term, on the 17th April, moved for a new trial, on the ground of misdirection. The Judge took the course of writing down, during the trial, the direction he meant to give to the jury, and delivering it to the counsel; when the defendants' counsel, finding it hostile to his clients, submitted to a verdict. As, however, the reporters have been unable to obtain a sight of that document, or even of the papers in the case,

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