A PRACTICAL TREATISE ON THE CRIMINAL LAW, WITH COMPREHENSIVE NOTES ON EACH PARTICULAR OFFENCE, THE PROCESS, INDICTMENT, PLEA, DEFENCE, EVIDENCE, TRIAL, VERDICT, JUDGMENT, AND PUNISHMENT. IN FOUR VOLUMES. VOL. III. CONTAINING PRECEDENTS OF INDICTMENTS, &c. BY JOSEPH CHITTY, Esq. OF THE MIDDLE TEMPLE, BARRISTER AT LAW. THE SECOND EDITION, CORRECTED AND ENlarged. LONDON: PRINTED BY SAMUEL BROOKE, PATER-NOSTER ROW. CHAPTER XIII. INDICTMENTS, &c. FOR OFFENCES AGAINST INDICTMENTs, &c. for NOT REPAIRING HIGHWAYS. - OF the offence. As the offence of suffering highways to Of the Offence. continue unrepaired, consists in a mere nonfeasance, to deter mine 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. way. Ways are of three kinds, first a foot-way, called in latin What is a highiter; 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 via, 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 fences 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 general, see Hawk. b. 1. c. 76. per totum. Bac. Abr. Highways. Burn, J. Highways. VOL. III. A 2 Saund. 157 to 162, with ways. [ 566 ] ther they be for the use of carriages, horses, or foot passengers only, or whether they lead directly to a 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. 268, 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. 1 Campb. 260; but see 5 Taunt. 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 Westminster;" 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 Sed quare. repair. [ 567 ] At common law, the general charge of repairing all high- Who bound to 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 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. 1 Russel, 465. 1 Ventr. 90. 183. 189. Hawk. b 1. c. 76. 8. 5. And this 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, 1 Ld. Raym. 725. 3 Campb, 222. 1 Russel, 465. Aud in the |