made a turnpike, and afterwards collieries were worked on each side of the road, and railways made from time to time across the road for the conveyance of the coals from the collieries. In the 1 & 2 Geo. 4, a new Act passed for repairing the same road. One of the former railways was continued and new railways made afterwards across the road for the same purposes as before. By a clause in this Act a penalty, recoverable on summary conviction, was imposed on any person who made any railway across the road "without the consent of the trustees or legal authority" and it was held that the making and continuing of the railways was indictable, and that no inference could be drawn to the contrary from the facts of the case or the words of the last Act. To do the work complained of the turnpike road was dug into, but filled up again and restored to its former state, except that the railroad remained, forming a groove of wood, adapted to the wheels of the railway carriages, and so far sunk into the road that the highest part of it was on a level with the road; and, upon a special case empowering the Court to draw inferences as a jury, after a verdict of guilty, it was held that the Court could not pronounce the injury created by this work to be too slight and uncertain to be indictable.(m)

Upon an indictment for obstructing a highway, it appeared that the defendant laid down on a highway a double line of tramways, on which omnibuses plied for hire; and these tramways and omnibuses were dangerous and inconvenient to many of the public, as the wheels of vehicles skidded when crossing the tramways, and horses which put their feet upon them were frightened; a very large number of persons used the omnibuses as a means of transit, to the great saving of their time and money, and the vestrymen of the parish through which the tramways ran had sanctioned their being made; Erle, C. J., 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 were a nuisance without reference to their being for the general convenience; and it was held that this direction was right; for supposing it possible that an arrangement for the use of a highway in a particular manner being for the advantage of the public would be an answer to an indictment for that *489] arrangement, this was not an arrangement for the ordinary use of the highway, but was withdrawing so much of the highway from its ordinary use as such; for it was impossible to use as an ordinary part of this highway the portion taken up by the tramways.(n) So, where, on a like indictment it appeared that telegraph posts were erected with the assent of the authorities, who were the guardians of the highways, either on the highway, or on strips of land by the side thereof; Martin, B., held that a permanent obstruction erected on a highway, without lawful authority, which renders the way less commodious to the public, is a nuisance; and if the jury believed that the defendants placed [for the purpose of profit to themselves] posts with the intention of keeping them permanently there [in order to make a telegraphic communication between distant places], and did permanently keep them there, and the posts were of such size as to obstruct the passage of carriage horses or foot passengers on the part of a road where they stood, the jury ought to find the defendants guilty; and that the circumstances that the posts were not placed on the hard part of the road, or upon a footpath formed upon it, or that sufficient space for the public traffic remained, were immaterial; and this ruling was held right; because in effect it came to this, whether there was a practical obstruction to the public in using the highway.(o)

It is a nuisance to break up the streets in a town for the purpose of laying down gas pipes,(p) and where certain commissioners had power to light the public streets of a town and to lay down pipes for that purpose, but no power to lay down pipes or the supply of private houses, and they transferred their powers to a company

(m) Reg. v. Charlesworth, 16 Q. B. 1012 (71 E. C. L. R.).

(n) Reg. v. Train, 2 B. & S. 640 (110 E. C. L. R.). It was also held that the Metropolitan Act, 18 & 19 Vict. c 128, s. 98, did not justify these proceedings.

(0) Reg. v. The United Kingdom Electric Telegraph Co., 6 Law T. 378. The parts between brackets are clearly immaterial; and "permanently" is too strong a term, as an obstruction for even a day would be enough: 9 Cox C. C. 137, 174.

(p) Ellis v. Sheffield Gas Consumers Co., 2 E. & B. 767 (75 É. C. L. R.).

who had no powers as a gas company; it was held that this company was indictable for laying down pipes to private houses, but not for laying down pipes for the public lighting of the town.(g)

Wherever a public way exists, the public have a right to enjoy it with ease and security, and if a man prevents that enjoyment, even by the use of his own property, he is guilty of a nuisance. If, therefore, the owner of land over which a public way passes excavates his land on each side thereof so as to leave the line of the way between two precipices, or makes an excavation so near to one side of the way that a person walking upon it might, by making a false step, or being affected by sudden giddiness, or in consequence of its being dark, or in the case of a horse or carriage way might by the sudden starting of a horse, be thrown into the excavation, this is a public nuisance; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public, is, in effect, as much impeded as in the case of an ordinary nuisance to a highway.(r)

If an excavation be made so near a highway as to cause danger to the public using the way, it is no defence to the party who made it that other parties were under a legal obligation created by statute to fence the highway, and that they had neglected to do so.(rr)

*Nor can it be doubted that many other things may be done so near to a [*490 highway as to create a nuisance, as the running of railway locomotives,(s) erecting a windmill and the like, so near to the highway as to frighten horses travelling upon it.

It has been doubted whether a person can build a bridge over a highway.(t) But it is plain that this must be a question for a jury in every case; for a bridge may be built in such a manner as either to be no nuisance or a great nuisance to a highway.(u)

There can be no doubt that any contracting or narrowing of a public highway is a nuisance; it is frequently, however, difficult to determine how far in breadth a highway extends, as where it runs across a common, or where there is a hedge only on one side of the way, or where, though there are hedges on both sides, the space between them is much larger than what is necessary for the use of the public; in these cases it would be for a jury to determine how far the way extended.(v) It (9) Reg. v. Longton Gas Co., 8 Cox C. C. 317; s. c., 2 E. & E. 651 (105 E. C. L. R.). (r) Barnes v. Ward, 9 C. B. 392 (67 E. C. L. R.); where an area was excavated close to an immemorial footway, and left unfenced, and a person passing along the way, the night being dark, without any negligence of her own, fell into the area and was killed: Hardcastle v. The S. Yorkshire Railway and River Dun Co., 4 H. & N. 67; Hounsell v. Smyth, 7 C. B. N. S. 731 (97 E. C. L. R.).

(rr) Wettor v. Dunk, 4 F. & F. 298.

(8) Vaughan v. Taff Vale R. Co., 5 H. & N. 679; Rex v. Pease, 4 B. & Adol. 30 (24 E. C. L. R.).

(t) Hole v. Sittingbourne and Sheerness Railway Co., 6 H. & N. 488. (u) See Reg. v. Betts, 16 Q. B. 1022 (71 E. C. L. R.), post, Rivers.

(v) See Brownlow v. Tomlinson, 1 M. & Gr. 484 (39 E. C. L. R.).

1 A temporary occupation of part of a street or highway by persons engaged in building or in receiving or delivering goods from stores or ware-houses or the like, is allowed from the necessity of the case; but a systematic and continued encroachment upon a street though for the purpose of carrying on a lawful business, is unjustifiable: People v. Cunningham, 1 Denio 524. A man may throw wood into the street for the purpose of having it carried into his house; and it may lie there a reasonable time: Comm. v. Passmore, 1 Serg. & R. 219. Materials for building may be placed in the street, provided it be done in the most convenient manner: Ibid. A merchant may have his goods placed in the street for the purpose of removing them into his store in a reasonable time. But he has no right to keep them in a street for the purpose of selling them: Ibid. And there is no difference in this respect between a public auctioneer, and a private merchant: Ibid. A person who collects together a large crowd in the public highways and streets of a city by means of "violent and indecent language addressed to persons passing along the highway," thereby obstructing the free passage of the street, is indictable for committing a common nuisance: Barker v. Comm., 7 Harris 412. So any thing which causes a crowd in a street: State v. Buckley, 5 Harring. 508. Spring guns, although justifiably placed to protect life or property, may constitute a nuisance if they cause actual danger to the passers by in the street: State v. Moore, 31 Conn. 479.

you

seems that in ordinary cases, where a road runs between fences, not only the part which is maintained as solid road, but the whole space between the fences is to be considered as highway. In a late case, Lord Tenterden, C. J., said, "I am strongly of opinion that when I see a space of fifty or sixty feet, through which a road passes, between enclosures set out under an Act of Parliament, that unless the contrary be shown the public are entitled to the whole of that space, although, perhaps, from economy the whole may not have been kept in repair. If it were once held that only the middle part, which carriages ordinarily run upon, was the road, might by degrees enclose up to it, so that there would not be room left for two carriages to pass. The space at the sides is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as the road, it could not be kept sound."(w) And in a late case(x) it was laid down by the Court that "where a highway passes through an enclosed country it is not the formed road merely (whether of pavement, gravel, or other material), but the whole space from fence to fence is the highway, and an obstruction in any part is equally the subject of indictment. The extent of a highway where it passes over a common, is frequently still more indefinite to the right and left of what may be the ordinary passage." So on an indictment for obstructing a highway by telegraph posts placed in some cases on strips of land by the side of the road, and in some cases where the strips were so broken up or covered with briars as to be practically impassable, it was held that in the case of an ordinary *491] *highway, although it may be of a varying or unequal width, running be tween fences, one on each side, the right of passage or way 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 entire of it as a highway, and are not to be confined to the part which may be metalled or kept in repair for the more convenient use of carriages or foot passengers. (y)

Upon an indictment for enclosing strips of land upon the sides of a highway, the question is, were these strips part of the highway, and used as such by the public.(z)

Where a person laid a railway four hundred yards along the side of a turnpike road, occupying a breadth of between three and four feet, and in several parts not leaving space enough for two carriages to pass each other safely without running upon the bars of the railway, which, however, did not rise an inch above the surface of the road. The passage of coal-wagons along the turnpike was very great, and without the railroad a much larger number must have been employed to perform the same work. There also was a considerable traffic on the turnpike. The jury were told that if they thought the effect of the railway was to obstruct, hinder, and inconvenience the public, they should find a verdict of guilty, and it was held that the direction was right. "The question whether the railway was an obstruction or not was a question of fact, and properly left to the jury. It was urged that if the thing complained of furnishes upon the whole a greater convenience to the public than it takes away, no indictment lies for a nuisance. Supposing that doctrine to be sound, which I am not prepared to say, how does it apply in this case? Here is a road for carts bringing down coals to S., and it is for the convenience of an individual, who sends coal there for sale, to make a railway along the public road for their conveyance in wagons. It is said, indeed, that all persons may use this railway who will pay for so doing, but no man has a right to tell the public that they shall discontinue the use of such carriages as they have been accustomed to employ, and adopt another kind, in order to pass along a new descrip

(w) Rex v. Wright, 3 B. & Ad. 681 (23 E. C. L. R.); ante, p. 468. The space at the sides of roads is also particularly useful for cattle to travel upon, as they get footsore on the stoned roads. This was much relied upon in the Pinner case, where a mandamus was granted to the London and Birmingham Railway Company to make the approaches to a bridge as wide as the stoned road and the sides had previously been: Reg. v. The London and Birmingham R. Co., 1 Car. N. & H. Railway Cases 317.

(x) Elwood v. Bullock, 6 Q. B. 383 (51 E. C. L. R.).

(y) Reg. v. The United Kingdom Electric Telegraph Co., 6 Law T. 378. ante, p. 489.

(z) Reg. v. Johnson, 1 F. & F. 657.

See this case,

tion of road, paying him for the liberty of doing so. I think this furnishes no excuse for the obstruction." (a) And it has been held that it is no defence to an indictment for a nuisance to a navigable river to prove that, although the work be in some degree a hindrance to navigation, it is advantageous in a greater degree to other uses of the river;(b) so, it should seem, that it is no defence to an indictment for a nuisance to a highway, that the thing complained of furnishes, on the whole, a greater convenience to the public than it takes away.(c)

But where an Act authorized the making a railroad near a highway, and the locomotive engines frightened the horses travelling on the highway, it was held that an indictment could not be sustained; for the legislature must be presumed to have known that travellers upon the highway would, in all probability, [*492 be incommoded by the engines using the railroad, and therefore there was nothing unreasonable in supposing the legislature intended that the part of the public which should use the highway should sustain some inconvenience for the sake of the greater good to be obtained by other part of the public travelling along the railway.(c)

But where a statute authorizes any company or persons to intermeddle with a highway provided they fulfil certain conditions, and they interfere with the highway without performing those conditions, they are liable to be indicted, and either the body corporate or the persons who cause the highway to be interfered with may be indicted.

80.

Upon an indictment for obstructing a highway, it appeared that the Manchester and Leeds Railway Company were empowered by statute to cut through and make obstructions in public roads for the purposes of the Act, doing as little damage as might be, and subject to the provisions and restrictions therein mentioned, and a subsequent section enacted that wherever any part of any public road should be found necessary to be cut through or so much injured as to be impassable or inconvenient for passengers, the company should, before any such road should be cut through, cause a good and sufficient road to be made instead thereof as convenient for passengers and carriages as the road cut through, or as near thereto as might be. The company, when making their railway, stopped up the public highway, and made a branch restoring the communication between the termini formerly connected by that highway, but by a different line. The new road was stated to be in some respects more convenient to the public than the old, but in others less The levels of the adjacent land made it impracticable to give a more convenient line consistently with the regulations of the Act, unless at an expense which, it was said, would be unreasonably great, and quite disproportioned to the benefit which would accrue from it to any part of the public. Maule, J., directed the jury to find a verdict of not guilty if they thought that the company had done no more damage than was necessary, and had made the road as convenient as the former one, or as nearly so as might be: intimating, as his own opinion, that the road could not be deemed absolutely as convenient even after allowing for the advantages which the public might have gained from it. But that the company were not, in his opinion, bound to lay out enormous sums of money to procure a slight accommodation to some persons; and that the proper rule seemed to be, that, if they could not make the road as convenient as before without a very disproportionate and unwarrantable expenditure, they should make it as nearly so as they could. And he left it to them to say whether the new road was as convenient as the old, or if not as nearly so as might be. The jury found a verdict of guilty, and on a motion for a new trial it was contended that an indictment would not lie because the Act charged was one which the statute permitted. Lord Denman, C. J., “The work

(a) Rex v. Morris, 1 B. & Ad. 441 (20 E. C. L. R.), per Lord Tenterden, C. J. It was also held that the railway was not authorized either by 45 Geo. 3, c. lxxiv., or 44 Geo. 3, c. lv.

(b) Rex v. Ward, 4 Ad. & E. 384 (31 E. C. L. R.), overruling Rex v. Russell, 6 B. & C. 566.

(e) See Reg. v. Train, ante, p. 489.

(e) Rex v. Pease, 4 B. & Ad. 30 (24 E. C. L. R.); Vaughan v. Taff Vale R. Co., & N. 679.

5 H.

*493] complained of as a nuisance, and undoubtedly making one, is the *cutting through of the carriage road. Now there is no question as to their right to do this; and though they are required, when they do it, to cause another road to be set out and made instead of it, they argue that they are no longer indictable for a nuisance in doing the lawful act, however they may be for disobedience of the law in neglecting to substitute another. The prosecutors reply by referring to the section, which requires the company to cause the new road to be made before they cut through the old. But the company rejoin, that from the state of the earth there it was impossible to do this, and could not be intended by the legislature. This argument we think inadmissible, for reasons too obvious to require a full statement of them. The company have done what the Act legalizes only on a condition, which they have not performed. They stand convicted of the nuisance and show no justification. The verdict will therefore not be disturbed."(d)

The Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20, s. 49, enacts that when any Railway is carried over a turnpike road by a bridge, the arch shall be such as to leave a clear space of not less than thirty-five feet. Sec. 51 enacts that wherever the average available width for the passage of carriages of any existing roads is less than the width herein before prescribed for bridges over the railway, the width of such bridges need not be greater than such average available width; but so that such bridges be not of less width in the case of a turnpike or public carriage road than twenty feet; that if such average available width shall be at any time increased beyond the width of such bridge, the railway company shall be bound to widen the bridge to such extent as they may be required by the trustees or surveyors of the road, not exceeding the width of the road as so widened, or the maximum width herein or in the special Act prescribed for a bridge in like case over a railway; and it has been held that the effect of this clause is that if the average available width for the passage of carriages on any road is more than thirty-five feet, the road may be narrowed to thirty-five feet under the arch; where it is less, the arch may be made the same width as the road, so that it be not less than twenty feet wide, and if the road be afterwards widened, the arch must be widened in proportion up to, but not beyond, thirty-five feet; but in this reckoning footpaths are not to be included. Therefore, where the road, including footpaths, was forty-three feet wide, but without these only twenty-eight, and the railway arch, thirty-five feet in width, stood partly upon and narrowed the footpath, but left the carriage way of its original width, it was held, on an indictment for obstructing the carriage way only, and not mentioning any footway, that the said Act and a railway Act incorporating it had been complied with, although the latter Act provided that wherever the railway crossed the road otherwise than at *494] right angles, the bridge should be made with a skew arch (which had been done) "so as not in any manner to alter the direction of or to interfere with the line of the said roads, or the footpaths to the same."(e)

So an incorporated railway company may be indicted for cutting through and obstructing a highway by a bridge and other works not made according to the provisions of their Act of Parliament; for though a corporation cannot be guilty of treason, felony or other offences, which derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects, they may be guilty as a body corporate of commanding acts to be done to the nuisance of the community at large. (ƒ)

(d) Reg. v. Scott, 3 Q. B. 543 (43 E. C. L. R.), and see Reg. v. Birmingham and Gloucester R. Co., 2 Q. B. 47 (42 E. C. L. R.), as to the construction of clauses empowering railway companies to cut through public roads, where it was held that a company could only narrow a highway as far as the width of the railway extended.

(e) Reg. v. Rigby, 14 Q. B. 687 (68 E. C. L. R.).

(f) Reg. v. The Great North of England R. Co., 9 Q. B. 315 (58 E. C. L. R.). The first four counts were in the ordinary form for cutting through and obstructing the road, and it was objected that as the defendants were authorized to cut through the road and erect the bridge, if in doing so they had not complied with the statutory provisions, they ought to have been indicted for a breach of those provisions. No express decision was pronounced on this objection, but it must have been overruled, as the Court gave judgment for the crown on the three counts. See Reg. v. The Birmingham and Gloucester R. Co.,