A Treatise on Criminal Law as Applicable to the Dominion of Canada

private nuisance to the owners of saw logs ready to pass, but prevented from passing thereby, as may be abated by them. (a)

The proper remedy for a public nuisance is by indictment. And where an obstruction of a navigable river is an injury common to all the Queen's subjects who have occasion to use the stream, and is, consequently, a public nuisance, a person sustaining no actual particular damage cannot maintain an action therefor, but the proper remedy is by indictment. (b)

An indictment is the proper remedy in all cases, except when a charter, which is assumed to be a contract between the parties obtaining it and the public that the road will be constructed, has been obtained to construct the road, and the work has never been done, in which latter case the proper remedy is mandamus.

A mandamus nisi having issued to compel a municipal corporation to repair and build a bridge, it appeared, on the return, that the liability was disputed on several grounds, it being contended that the bridge did not belong to the defendants, that it was not constructed on the site provided by the charter of the original company which built it, and was in an unfit and dangerous place, and that it should be repaired by another municipality : -Held that, under these circumstances, a mandamus would not lie, and that the applicants must proceed by indictment. (c)

The circumstance that the thing complained of furnishes, on the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance. (d) As to highways, the test, irrespective of

(a) Little v. Ince, 3 U. C. C. P. 545-6.

(b) Small v. G. T. R. Co. 15 U. C. Q. B. 283.

(d) Reg. v. Bruce, 10 L. C. R. 117; Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J.; R. v. Ward, 4 A. & E. 384, 6 Nev. & M. 38.

the balancing of the advantages against the impediments, is, whether the obstruction is prejudicial to the public to a degree amounting to a nuisance in fact, that is, directly, however beneficial collaterally. (a) Though a nuisance is erected before any person comes to live on or near the place, this does not prevent them complaining of it, on afterwards coming there. (b)

In addition to the remedy by indictment, a nuisance may, in certain cases, be abated by the parties affected thereby, and this whether the nuisance is public or private, and though on the soil of another. (c) But a private individual cannot abate a public nuisance, unless by reason of some special inconvenience or prejudice to himself, or an occasion to require and justify it. (d) A boom stretched across a floatable stream or river, in a place having relation to public lands, is a public nuisance, and, as such, may be abated by any person, notwithstanding Con Stats. Can., c. 23, s. 13, for the latter only respects booms having reference to public lands. (e)

The defendant was convicted by a jury of a nuisance in keeping in a building an excessive quantity of gunpowder. Having failed to establish at the trial that he had abated and prostrated the nuisance, the Court thereupon adjudged that he should pay to Her Majesty £50, and be imprisoned until the fine was paid, and ordered the Sheriff forthwith to abate the nuisance, by the immediate destruction of the powder. (ƒ)

Where the defendant neglects to abate the nuisance, the Court will compel its abatement through the Sheriff.

(a) Reg. v. Meyers, 3 U. C. C. P. 323, per Macaulay, C. J.; and see Rowe v. Titus, 1 Allen, 326.

(b) Reg. v. Brewster, 8 U. C. C. P. 208.

(d) Ib. 545, per Macaulay, C. J.; and see Dimes v. Petley, 15 Q. B. 276; Reg. v. Meyers, supra, 333, per Macaulay, C. J.

(e) Reg. v. Patton, 13 L. C. R. 311.

(f) Reg. v. Dunlop, 11 L. C. J. 186.

An indictment had been preferred against the defendant, in a previous term, for a public nuisance, and judgment obtained ordering its abatement, the Court, on an affidavit that the nuisance had not been abated, made a rule absolute for a precept to the Sheriff to abate the nuisance. (a)

A party is liable to fresh actions for continuing a nuisance. (b) And it may be generally stated that when a person is liable to an action for a nuisance, he may also be indicted. (c)

There seems to be no authority for a Justice convicting a party summarily of a nuisance, and fining for the offence. (d) A conviction by a Magistrate for obstructing a highway, and order to pay a continuing fine until the removal of such obstruction, was held bad, as unwarranted by any Act of Parliament. (e)

Twenty years' user will not legitimate a public nuisance. (f) The maxim that no length of time will legalize such nuisance generally holds; (g) but as applied to a question of dedication, equivocal in itself, after a lapse of thirty years, without any public enjoyment, before or after suit, it forms a proper subject to be taken into consideration. (h)

Highways exist both by land and water. In Ontario, those by land have accrued to the public by dedication of the Crown, in what is commonly termed allowances for roads in the original survey of towns and townships; or by dedication of private individuals, or under the provisions of the Statute Law, or by usurpation and long

(a) Reg. v. Hendry, 1 James, 105.

(b) Drew v. Baby, 6 U. C. Q. B. O. S. 240, per Robinson, C. J.

(d) Bross v. Huber, 18 U. C. Q. B. 286, per Robinson, C. J.

(e) Reg. v. Huber, 15 U. C. Q. B. 589.

(f) Reg. v. Brewster, 8 U. C. C. P. 208.

(g) See R. v. Cross, 3 Camp. 227; 4 Bing. N. C. 183.

(h) Rex v. Allan, 2 U. C. Q. B. O. S. 105, per Macaulay, C. J.

enjoyment. Upon land, therefore, highways are established only by some positive act, indicating the object and its accomplishment. They are, it may be said, artificially made, or only become such by acts in pais. It is otherwise with navigable rivers and watercourses. They are natural highways, pre-existing and coeval with the first occupancy of the soil, and formed, practically, the first or original highways, in point of actual use. (a)

In the year 1826, the original town plot of London was surveyed under instructions from the Crown, and the plan of such survey, with the field notes, shewed that two of the streets, for obstructing portions of which the defendant was indicted, were extended to within four rods of the river Thames, which runs through that town. The overseer of highways for the years 1829, 1830, 1831, stated that he had traced the streets in question all through; that the posts were there; that he opened the streets by the posts; that there was a road reserved four rods along the river bank; that one of the streets ran down to the river, and the posts were then four rods from the river when he opened that street.

In 1832, one R. was duly instructed to survey a mill site in the town, and to lay off for the purchaser such ground as might be necessary, and he thereupon ran a line which crossed these two streets as designated upon the original plan, and cut off portions of several town. lots laid out upon this plan.

In 1839, a mill site was sold by the Crown land agent to one B. (under whom the defendant claimed), not according to R.'s survey, but according to a small plan obtained from the original surveyor; and the patent, which issued in 1846, appeared to grant the land designated on this plan, making no reservation of streets, but including

(a) Reg. v. Meyers, 3 U. C. C. P. 352, per Macaulay, C. J.

the extensions to the river of the streets in question, as laid out upon the original plan.

Previously, also, to this sale, lots had been sold on these streets by the proper authorities; the streets had been worked and improved, and one in particular was open to the river, and the other as far as where the obstruction stood.

Held, affirming the judgment of the Court of Common Pleas (a), that the evidence conclusively established that the streets in question had been laid out in the original survey of the town to within four rods of the river, and that this space was left open for public use; that the existence of these streets as public highways was shewn by the work on the ground at the original survey, and by the adoption, on the part of the Crown, of that work as exhibited on the plan thereof returned, which adoption was established by the disposition of lands according to that plan and survey; that thereby these streets became public highways; and although, prior to such adoption, the Crown would not have been bound by either plan or survey, after such adoption there was no power of making such an alteration as would be necessary to establish the defence set up. (b)

Where, for a period of more than twenty years, there had been travelled roads through the Humber plains in the Township of Etobicoke, not laid out by any proper authority, but used by the public at pleasure, owing to the original allowances not having been opened. They were irregular in their direction, and varied, at times, in their course. On the 31st March, 1835, seven hundred acres, including the defendant's lot, "with allowances for roads, as left by the survey of Deputy-Surveyor Hawkins,

(a) 16 U. C. C. P. 145.

(b) Reg. v. Hunt, 17 U. C. C. P. 443 (in E. & A.)

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