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OF the offence. As the offence of suffering highways to of the Offence. continue unrepaired, consists in a mere nonfeasance, to determine in what cases it exists, it will only be necessary to inquire what are considered as public ways in respect of which an indictment may be supported, and who are the parties bound to repair them.

Ways are of three kinds, first a foot-way, called in latin What is a highi

way. iter; secondly, a pack and prime way, or road for foot-passengers and horses, termed actus; and thirdly, a road for carriages, horses, and men, which is denominated vin, or aditus, and includes both the former, Co. Lit. 56. Hawk. b. 1. c. 76. s. 1. The term “ way,” signifies, in legal acceptation, merely the surface of the ground over which the king's subjects have a right to pass, and does not include the

[ 566 ] feuces on either side, 2 T. R. 232. 234. Rol. Abr. 392. A common street and a king's highway, though formerly distinguished, are now equally public, 1 Stra. 44. Any of these roads, which are common to all his majesty's subjects—whe

(a) On this subject in ge- 2 Saund. 157 to 162, with neral, see Hawk. b. 1. c. 76. notes. Williams, J. Highper totum.

Bac. Abr. High- ways. Dick, J. Highways. ways. Burn, J. Highways. VOL. III.


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ther they be for the use of carriages, horses, or foot passengers only, or whether they lead directly to å market, or only from one town to another, or even from a hamlet (4 Burr. 2091, 2.) may properly be termed high or common ways, and any default in those bound to repair them, or obstructions laid upon them, may be redressed by criminal process, Hawk. b. 1. c. 76. s. 1. It has also been laid down, that an open river may be termed a highway, and is protected by similar proceedings, Id. ibid; but it was observed by Mr. Justice Buller, in 3 T. R. 263, that a navigable river and a highway are perfectly distinct, and that if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands; though it is quite clear, as observed by the same learned judge, that if the usual track of a highway become impassable, by the overflowing of a stream or otherwise, the adjacent ground will be open to passengers, and so become, in effect, a highway, until the removal of the obstruction, Dougl. 746, &c. It has been held, that a private individual who builds a street, or otherwise opens a thoroughfare to the public, without erecting any bar to preserve his right of stoppage, or even throws open a passage, without any visible mark of exclusion or prohibition to persons using it, will, after the expiration of six years, be considered as having dedicated it to the public, and that therefore it cannot afterwards be closed, 11 East, 375. i Campb. 260; but see 5. Taupt. 125. 142. 4 Campb. 16. And in order to give the public a right of way by dedication, it must be done with the consent of the owner of the fee;. for where it is given by an individual having a limited right, it can only continue for a limited period; and therefore in trespass and justification under a public right of way, where the locus in quo, which was not a thoroughfare, had been under lease from 1719 to 1818, but as far back as living memory could go, it had been used by the public, and lighted and paved and watched under an act of parliament, in which it was enumerated as “ one of the streets in Westmioster;" and after 1818, the plaintiff, who previously lived for twenty-four years in its neighbourhood, inclosed it, it was held, that under these circumstances, the jury were well justified in finding that there was no public right of way, inasmuch as there could be no dedication to the public by the tenants for ninety-nine years, nor by any one, except the owner of the fee, 5 B. & A. 454. And in another case, 4 B. & A. 447, where a road was set out by the commissioners under a local act, and certain persons only were by the act to use it, but in fact it had been used by the public for many years ;

it was held, that this was not sufficient evidence of a dedication to the public, and that if it was, there being no evidence that the parish had acquiesced in that dedication, it was not a public road which the parish were bound to repair. The originally establishing a bar or obstruction, rebuts the presumption of a dedication to the public, though it may bave been down for some time. Per Heath, J. i Campb. 262, (n.) and id. 263, (1.) 5 Taunt. 125. 4 Campb. 16. And there cannot be a partial dedication to the public, i Russ. 451; and the dedicating a way to the public, is merely a communication of the right of passage, for the original owner retains his interest in the soil, with all trees which grow upon it, and mines which may be opened beneath it, 2 Inst. 705. 1 Burr, 143. 2 Stra. 1004. i Campb. 260, in notes. The public may have a right to a road, though there is no thoroughfare, 11 East, 375.

See 5 Taunt. 125. 5 B. & A. 454. 2 Burn, J. 24th ed. 821. So there may be a public highway, though it is circuitous, i Campb. 261. 3T. R. 265; or leads to a common; or is used by the public but occasionally; and though it does not terminate in a town, or in any other public road, 1 B. & A. 63. Sed vide Hawk. b. 1. c. 76. s. 1. On the contrary, it is not necessarily a highway, although it does lead from one market town to another, or connect any two points by a line, which might be advantageously used by the public, or is used by them under certain restrictions, see 11 East, 376, note a.

Sed quare.

At common law, the general charge of repairing all high- Who bound to

repair. ways, lies on the parishes through which they pass ; each being liable to repair the portions of road which are situate within its own limits, Hawk. b. 1. c. 76. s. 5. And therefore, if a particular district within it is expressly exempted from liability [ 567] to repair new roads by the provisions of a road act, the charge must necessarily fall on the rest of the parish, 2 T. R. 111. i Russel, 465. Ventr. 90. 183. 189. Hawk. b ). c. 76. s. 5. And th s general principle of the liability of the parish is so strong, that if by statute, trustees or other persons are made responsible for the condition of ways, and afterwards become insolvent, the duty of the parishioners revives, i Ld. Raym. 725. 3 Campb. 222. i Russel, 465, Aud in the

case of a new road, the same liability on the parish exists, 2 B. & A. 183. And if trustees ought to repair, the parish must resort to them, as pointed out under the 13 Geo. 3. c. 84. s. 33. id. No agreenient can exonerate the 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 the houses alongside of it, was held to be bad, on the ground that the inhabitants of the parish, who are primâ facie bound to the repair of all highways within their boundaries, cannot be discharged from such liability, by any agreement with others, 3 East, 88. As the duty is thrown upon the whole parish, no indictment can be sustained against any particular part of it, any more than against a private individual, without shewing the particular grounds by which the liability is shifted, 2T. R. 513. So though it was once decided, contrary to the older authorities, that where a parish lies within two counties, the inhabitants of that part alone in which the decay was charged, should be indicted, 4 Burr. 2507. it is now settled, that this circumstance will make no difference, and the whole must be charged jointly, as if it lay within the same county, 5 T.R. 498; and on the other hand, where the way out of repair runs through several parishes, a joint indictment against such parishes, is not sustainable, 6 Wentw. 409, in notes. As it frequently happens that the boundary of parishes is in the middle of a highway, so that both are liable to repair part; in order to prevent the difficulty which might arise from this circumstance, the 34 Geo. 3. c. 60, enables two justices to settle and mark the boundaries, and their division will compel both parishes to repair the portions they allot to each of them. Where the parochial situation of the road is altered by an award of commissioners under an inclosure act, but the parish to which it originally belonged, continues to repair it for a time, and then suffers it to go to decay, the inhabitants must, in order to exonerate themselves, prove that the proper notices were given required by the statute, 2 M. & S. 558. The. mode by which each parish is enabled to keep its roads in repair, is set forth in the 13 Geo. 3. c. 78, and 13 Geo. 3. c. 84, wbich repeal all the former statutes, which before were both complicated and numerous.

But though the parish is thus primâ facie liable to repair, the burthen may be thrown on others, by the operation of

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And on

various causes ; and it is said, that even by common right, the
occupiers of the lands adjoining a highway, are bound to
cleause the ditches by which their lands are protected, Hawk.
b. 1. c. 76. s. 5. Bac. Abr. Highways, E; and it is question-
able, whether the inhabitants of an extra-parochial bamlet, not
forming part of a larger district (the inhabitants of which are
bound to repair), are not liable at common law, 2 B.& C.
190. Individuals or corporalions may become bound to
repair particular ways by inclosure or prescription. The lia-
bility consequent on inclosure, arises from the right of the
public, when a highway is obstructed, to go on the lands ad-
jacent, whether they are cultivated or barren, 2 Saund. 161,
n. 12. Dougl. 749. And therefore if a person, who is the
proprietor of open lands adjoining a highway, fences them in
on both sides of the road, he will be bound to keep it in suffi-
cient repair; because before such inclosure, when the road was
in decay, passengers could avoid the inconvenience by taking
a circuit through his grounds, which opportunity is now pre-
vented, Cro. Car. 366. Hawk. b. 1. c. 76. s. 6.
this ground it is, that it will not discharge him from making
the road sufficiently passable, that he keeps it in as good
repair as it was previous to the inclosure, Hawk. b. 1. c.76.
s. 6. On this ground, too, if a proprietor inclose land on
one side of the road only, and there is an ancient fence on the
other, he will be compelled to repair the whole of the high-
way lying between them ; but if there is no inclosure on the
other side, of long standing, he will only be liable to amend
half of it, and will share the responsibility with the owner of
the opposite lands, 1 sid. 464. Hawk. b. 1. c. 76. s. 7.
2 Saund. by Wins. 161, n. 12. And if the road be insufficient,
any of the king's subjects may justify breaking down the in,
closure, and passing, as before, on the adjoining land, 3 Salk.

But the party liable may discharge himself from all Jiability, by throwing down the inclosure, by which it was thrown upon him, Hawk. b. 1. c. 76. s. 6. 2 Saund. 160, 161. Ambl. 295. And when the lands are inclosed by force of a legal warrant, as under an act of parliament, no duty is thrown on the owner, 1 Burr. 461. And when the course of a road is changed by a writ of ad quod damnum, the inhabitants, if it pass through the same parish, are bound to repair the new road, and not the party through whose lands it may be made, unless the jury impose such condition upon him, see 2 Saund. 161, note 12. i Burr. 465; because such inhabitants were

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