a dedication would be simply void. (e) A way may be dedicated to the use of the public for all purposes except that of carrying coals, so that persons carrying coals may be prevented from passing along it. (f) Where there was a strip of open, uninclosed land between a public carriage-road and a paved footpath, and the owners of the houses by the side of the paved foot-way had always, by permission of the owner of the soil, used the space between the foot and carriage-way for purposes connected with their occupations, whenever they had occasion, and such use as the public had of it was of a limited and uncertain character, and was subject to the use of it made by such occupiers, it was held that the dedication to the public of the use of the intermediate space was subject to the use so made of it by the landlord and his tenants. (g)

A highway may also, as we have seen, be dedicated to the public, subject to the existence of steps, cellar-flaps, and obstructions rendering the way dangerous, so that the public must take the way subject to these inconveniences.

309. Gates across a highway.-When a way has been dedicated to the the use of the public subject to a gate across,it, the public can only take the way subject to the inconvenience of the gate; but when the way has been dedicated without a gate, the owner of the soil can not lawfully obstruct the road with a gate. ()

310. There can be no dedication for a limited time, certain or uncertain. If dedicated at all, the way is dedicated in perpetuity. Hence the maxim "once a highway, always a highway"-for the public can not release their right, and there is no extinguishment of the public right by presumption or prescription. (i)

311. Common highway of necessity." If there be but one road to a place, and no other way of going, that is a way of necessity; if the jury find this, we take it to be a common highway by necessity." (k) If a vill be erected, and a way laid out to it, if there be no other way but that to the vill, it is not material

(2) Bermondsey Vestry v. Brown, L. R, 1 Eq. Ca. 204.

(f) Marquis of Stafford v. Coyney, 7 B. &. C. 257.

(g) Le Neve v. Vestry of Mile End, &c., 8 Ell. & Bl. 1054; 27 Law J., Q. B.

208.

(h) James v. Hayward, ante.

(i) Byles, J., Dawes v. Hawkins, 8 C. B., N. S. 857; 29 Law J., C. P. 343.

(k) Chichester v. Lethbridge, Willes, 72.

quo animo it was laid out, it shall be deemed a public way. (7)

312. Proof of highway by proof of parish repairs.--The fact of a road having been repaired by a parish "as far back as living memory can go," is a strong fact in favor of the road being a public road, but it is not conclusive. (m)

313. Indictable obstructions in public thoroughfares.—A highway may, as we have seen, be dedicated to the public subject to a pre-existing easement, such as a right vested in the owners. of adjoining land, of depositing goods thereon in certain places. (n)

In the case of an ordinary highway running between fences, the right of way or passage is prima facie, and unless there be evidence to the contrary, extends to the whole space between. the fences, and the public are entitled to the use of the whole of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and passengers. It is an indictable offence, therefore, to place posts on greensward and open places extending between the metalled part of the road and the fence, dividing the road from the adjoining land, although the posts do not in point of fact offer any injurious obstruction to the public traffic. It is enough that they stand in the way of those who may wish to traverse the whole space between the fences, (c) and neither vestry trustees nor commissioners of highways can authorize the placing of anything on a highway which constitutes a public nuisance; and it is no answer to an indictment for obstructing a thoroughfare to show that the obstruction, such as a tramway, though an annoyance to some passengers, is a great convenience to others, for "you can not, for the advantage of one part of the public, commit acts which are a nuisance to another part.” (p) If, instead of an indictment at common law, an injunction in Chancery is applied for, it must be in the name of the Attorney-General. (g)

(1) Reg. v. Inhab. of Hornsey, 10 Mod. 150.

(m) Reg. v. Hawkhurst, 11 W. R. 9; 7 Law T. R., N. S. 268.

(2) Morant v. Chamberlain, ante. Le Neve v. Mile End Vestry. &c., supra.

(0) Reg. v. Un. King. Tel. Co., 31 Law J., M. C. 167. Rex. v. Wright, 3 B. &

Ad. 683. Turner v. Ringwood Highway
Board, post.

(p) Reg. v. Train, 31 Law J., M. C. 169. Rex v. Ward, Rex v. Tindall, ante. See The Tramways Act," 1870," 33 & 34 Vict. c. 78. See ss. 40, 55, & 62. (7) Bermondsey Vestry v. Brown, ante.

By the 27 & 28 Vict. c. 101, s. 51, penalties are imposed upon any one enroaching on the soil of a highway by placing any building, fence, &c., or manure, rubbish, &c., on the sides. of any carriage or cart-way, within fifteen feet of the centre thereof, or by removing the turf, &c., from the sides of the road, and the expense of removing the obstruction is to be levied by order of justices on the persons offending. (r) This Act extends to any land which has been dedicated as and forms part of the highway, though not metalled, but not to land on the side of the road, which has not been so dedicated. (s)

314. Indictable obstructions in navigable rivers.--An erection. in a port or navigable river is not to be deemed a nuisance, simply because it infringes on the water-way. It is not every building below the high.water mark, nor every building below the low-water mark, that is ipso facto in law a nuisance, for that would destroy all the quays in all the ports of England. Whether a building in or near the water, be a nuisance or not, is a question of fact, to be determined by a jury, on evidence, and not a question of law. (t) "Where the navigation of a river has become obstructed by a vessel which has sunk, and been lost to the owner, without any fault of his, the public inconvenience of the obstruction is one in respect of which the owner differs from, the rest of the public only in having sustained a private calamity, in addition to his share of a public inconvenience; and this difference does not appear to be any reason for throwing on him the cost of remedying or mitigating the evil. Lord KENYON held that the owner of a ship sunk in the Thames by accident and misfortune, without his default or misconduct, was not liable to an indictment for not removing the obstruction. It was contended, for the prosecution, in this case, although the defendant was not punishable for causing the nuisance, it having arisen from accident, it was his duty to remove it; but the learned judge answered that perhaps the expense of removal might have amounted to more than the whole value of the property." (u)'

(r) As to cattle straying on highways, see s. 25, ante, in notis; on a turnpike road, 34 & 35 Vict. c. 115, s. 20.

(s) Easton V. Richmond Highway Board, L. R., 7 Q. B. 69.

() Hale, De Portibus Maris Hargr.

1

Tracts, p. 85. Rex v. Russell, 6 B. &.
C. 572.

(u) The King v. Watts, 2 Esp. 675. Brown v. Mallet, 5 C. B. 619. White v. Crisp, ante.

1 See Wood on Nuisances, Chap. 17, on Navigable Streams.

315. Repair of highways, sea-banks, (v) and sewers.—The Highway Act, 1835, 5 & 6 Wm. 4, c. 50, requires (s. 23) three months' notice to be given to the surveyor of highways of the intention to dedicate any road or occupation-way, made by private persons, bodies politic or corporate, or any private drift-way and horse-path, set out in any award of commissioners under an inclosure Act, describing its situation and extent, and also the certifitate of two justices in petty sessions that it has been made in a substantial manner, and of the width required by the Act before any such road, &c., shall be deemed to be a highway, which the inhabitants of the parish shall be compellable to repair, but in all other respects as regards the right of the public to use it, it remains a highway. (v)

If a highway is washed away and totally destroyed by the sea, so that there is no longer anything left to repair, and nothing that can be effectually restored, the parish is released from its liability to repair. (x)

316. Liability to repair ratione clausura.- Where a defendant is sought to be made responsible for the non-repair of a highway, on the ground that he has enclosed vacant spaces of ground adjoining the highway, and encroached on land used for passage when the beaten track was foundrous, it must be proved first, that the highway has been used immemorially as a highway; secondly, that the land inclosed has been used for passage when the beaten tract was foundrous; thirdly, that the defendant is the occupier of the inclosed land taken from the public thoroughfare, for there is neither precedent nor authority for charging the owner not in possession. (1)

The parish of common right ought to repair their highway, (2) unless by order of magistrates they have been relieved from their liability. (a) Where, indeed, there are several townships in one parish, a particular township, may, by immemorial usage, be liable to repair its roads distinct from the parish at large. (b) But it lies upon the township to establish its exemption from the ordinary rule, (c) and it is not sufficient for

59.

(v) See post.

(w) Roberts v. Hunt, 15 Q. B. 17.
(x) Reg. v. Hornsea, 23 Law J., M. C.

(1) Reg. v. Ramsden, Ell. Bl. & Ell. 949; 27 Law J., M. C. 296.

(*) Rex v. Bagley, 12 Mod. 409, per

Holt, C. J. See Hirst v. Halifax Local
Board, L. R., 6 Q. B. 181.

(a) See Reg. v. Justices of Surrey, L. R., 5 Q. B. 466.

(b) Rex v. Ecclesfield, 1 B. & Ald. 348. (c) Freeman v. Read, 4 B. & S. 174.

this purpose to show that it has never been assessed to the highway-rates of its own parish, but has always been treated as part of an adjoining parish, and rates levied upon it by such parish until recently, when, by arrangement with such parish, the occupiers repaired the highway themselves, without any rate being made; for the proper inference from such facts is, not that it is a township repairing its own roads, but that, by some old arrangement made for mutual convenience, it was considered part of the adjoining parish for the purposes of repair, and on the termination of that arrangement all parties are remitted to their original rights and liabilities. (d) Where to an indictment for the non-repair of a highway in parish A the defendants pleaded that from time immemorial the inhabitants of parish B, in consideration of levying and receiving rates on certain lands in parish A, had repaired such highway, it was held that such a liability, if it could exist at all, which was very doubtful, could only arise on sufficient consideration, and that the consideration stated, viz., an immemorial custom to levy rates, was clearly not sufficient for the power to levy rates existed by statute only, and arose long after the time of legal memory. Any arangement, therefore, made by adjoining parishes as to mutual repair, can be put an end to at any time. (e)

317. Repair by District Highway Board.-By the 25 & 26 Vict. c. 61, the formation of district highway boards is authorized. By the 17th section, such board is directed to maintain the highways within their district, and they are to have the same powers, to be subject to the same liabilities, and to perform the same duties as the parish surveyor would have performed or been liable to if the act had not been passed. By the 18th section provision is made for the issue of a summons by a justice of the peace if the highway is out of repair, and for the making of an order at petty sessions for such repair, which order is removable into the Court of Queen's Bench, in the same way as an order of general or quarter sessions. If the liability to repair is disputed, the justices are to order an indictment against the parish or person charged with the repair (s. 19). But this section only applies to admitted highways, and does not apply where the liability to repair, if the highway (d) Dawson V. Willoughby-with- Q. B. 213. Dawson v. Willoughby-withSloothby, 34 L. J., M. C. 37. Sloothby, supra.

(e) Reg. v. Ashby Folville, L. R., I