road, and there is 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 exclude the public(a).

306 Who may dedicate—A mere tenant or lessee has no power to throw open land to the public, and create a public thoroughfare in derogation of the rights of the landlord or reversioner. There cannot be a public way by dedication, unless there be some evidence to show that the owner of the soil has consented to such user. The consent of the lessee is not sufficient for that purpose, because it cannot bind the owner of the inheritance(b). But if the acts of user are notorious, and go on for a great length of time, and notwithstanding a frequent change of tenants, it may be presumed that the owner has been made aware of them, and that the way was used with his concurrence(c). 307 "Commissioners of public works have no power to dedicate to the use of the public, as a highway, land which they have been intrusted with the ownership of for a special purpose, and for which special purpose the land may at some future period be required. As all the King's subjects are presumed to know Acts of Parliament, they, when they used the road, must be presumed to have known that, in point of law, it could not be so dedicated, and that it could only be used as a way of permission and sufferance; and they cannot be considered as having acquired a right by adverse enjoyment, but only by usurpation on rights which were designated by Parliament, and which, therefore, could not be infringed upon "(d).

308 Limited dedication.-There may be a dedication of a way for a limited purpose, as for a foot-way, horse-way, or drift-way, but there cannot be a dedication to a limited part of the public, as to the inhabitants of a particular parish. Such 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

(a) Best, J., Wood v. Veal, 5 B. & Ald. 457. See Hall v. McLeod, 2 Met. (Ky.) 98.

(b) Wood v. Veal, 5 B. & Ald. 454. Harper v. Charlesworth, 4 B. & C. 591. See Lownsdale v. Portland, Deady, 1. Dedication of land for a highway can be made by the owner only or his duly authorized agent. Bushnell v. Scott, 21 Wis. 451. It cannot be made by a squatter on government lands. Gentleman v. Soule, 32 Ill. 271. Nor by a mortgagor to the prejudice of the rights of the mortgagee. McMannis v. Butler, 49 Barb. (N. Y.) 176.

(c) Davies v. Stephens, 7 C. & P. 570.

(d) Littledale, J., Rex v. Leake, 5 B. & Ad. 485.

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

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

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 (ante, pp. 205, 206). 309 Gates across a highway.-When a way has been dedicated to 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 cannot lawfully obstruct the road with a gate(h).

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 cannot 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 quo animo it was laid out, it shall be deemed a public way().

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

(g) Le Neve v. Vestry of Mile End, etc., 8 Ell. & Bl. 1054; 27 Law J., Q. B. 208.
(h) James v. Hayward, ante, p. 207. Green v. Bethea, 30 Ga. 896.

(i) Byles, J., Dawes v. Hawkins, 8 C. B., N. S. 857; 29 Law J., C. P. 343. A dedication once made is irrevocable. Proctor v. Lewiston, 25 Ill. 153. Oswald v. Grenet, 22 Texas, 94. By the laws of New York (laws of 1861, ch. 311,) all highways that have ceased to be traveled or used as such for six years cease to be highways. See Amsbry v. Hinds, 48 N. Y. 57.

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

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

(m) Reg. v. Hawkhurst, 11 W. R. 9; 7 Law T. R., N. S. 268. See Daniels v. People, 21 Ill.

easement, such as a right vested in the owners of adjoining land, of depositing goods thereon in certain places().

In the case of an ordinary highway running between fences, the right of way or passage, primâ 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(6), 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 cannot, 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 (7).

By the 27 & 28 Vict. c. 101, s. 51, penalties are imposed upon any one encroaching on the soil of a highway by placing any building, fence, etc., or manure, rubbish, etc., on the sides of any carriage or cart-way, within fifteen feet of the centre thereof, or by removing the turf, etc., from the side 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

(n) Morant v. Chamberlain, ante, p. 206. Le Neve v. Mile End Vestry, etc., supra. (0) Reg. v. Un. King. Tel. Co., 31 Law J., v. Ringwood Highway Board, post, p. 309. Dickey v. Maine Telegraph Co., 46 Me. 483. (p) Reg. v. Train, 31 Law J., M. C. 169. Rex v. Ward, Rex v. Tindall, ante, p. 264. See "The Tramways Act, 1870;"' 33 & 34 Vict. c. 78. See ss. 40, 55, & 62.

M. C. 167. Rex v. Wright, 3 B. & Ad. 683. Turner
See Harrower v. Ritson, 37 Barb. (N. Y.) 301;

(q) Bermondsey Vestry v. Brown, ante, p. 270.

(r) As to cattle straying on highways, see s. 25, ante, p. 237 in notis; on a turnpike road, 34 & 35 Vict. c. 115, s. 20. The statutes of New York and Michigan fixing a penalty for encroachments upon highways, apply to highways laid out as provided by law, and not to those established by public use. Doughty v. Brill, 3 Keyes (N. Y.), 612. Parker v. People, 22 Mich, 93. For the statutory penalty fixed by the laws of Wisconsin, see Revised Statutes of 1858, ch. 19, ss. 101-103. See, also, Wyman v. State, 13 Wis. 663.

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, that 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). 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 certificate 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, etc., 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(w).

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

(t) Hale, De Portibus Maris Hagr. Tracts, p. 85. Rex. v. Russell, 6 B. & C. 572.

(u) The King v. Watts, 2 Esp. 675.

(v) See post, pp. 276, 279.

(w) Roberts v. Hunt, 15 Q. B. 17. AD. VOL. I.-18

Brown v. Mallet, 5 C. B. 619. White v. Crisp, ante, p. 209.

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 track was foundrous; thirdly, that the defendant is the occupier of the enclosed land taken from the public thoroughfare, for there is neither precedent nor authority for charging the owner not in possession(y).

The parish of common right ought to repair their highway(2), unless by order of the 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 own 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 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 highways 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

x) Reg. v. Hornsea, 23 Law J., M. C. 59.

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

(2) 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.

(d) Dawson v. Willoughby-with-Sloothby, 34 L. J., M. C. 37.